Court Upholds Decision Overturning 2010 Sexual-Assault Case

The Arkansas Supreme Court on Thursday upheld a lower court decision overturning the 2010 second-degree sexual assault conviction of a Fort Smith man sentenced to 12 years in prison.

A Sebastian County jury convicted Joseph Anthony Scamardo Jr., 40, on Aug. 4, 2010, after jurors deliberated more than nine hours. However, the jury could not reach a decision on sentencing. Five days later, Circuit Court Judge Stephen Tabor sentenced Scamardo to 12 years in prison.

In June, the Arkansas Court of Appeals agreed with Scamardo’s attorney, John Van Winkle, that Tabor erred when he excluded evidence that Scamardo’s accuser made a prior inconsistent statement about the alleged assault, and erred when he let the accuser’s father testify to what his daughter told him about the alleged assault.

The Court of Appeals reversed Scamardo’s conviction and remanded the matter to circuit court, but in September the Supreme Court agreed to hear the state’s appeal of that decision.

Van Winkle, who represented Scamardo at trial, wanted to introduce the testimony of a relative of Scamardo’s accuser, who would testify the girl said “they are making me lie” about the allegation against Scamardo.

In its opinion issued Thursday, the high court determined Tabor was wrong when he ruled the testimony was inadmissible hearsay.

The testimony wasn’t offered to “prove the truth of the matter asserted” but as evidence to impeach the girl’s testimony that she never made the statement she was forced to lie about the allegation against Scamardo, according to the ruling.

Regarding the father’s testimony, statements made by victims of sexual assault to third parties are often admissible, but the statements must be an “excited utterance” made “shortly” after the offense to be admissible at trial.

In this case, the Supreme Court noted the accuser’s statement to which the father testified was made a month after the alleged assault and therefore wasn’t made close enough in time to the alleged incident to be considered an excited utterance.

The Arkansas Attorney General’s Office attempted to argue the testimony was admissible under another exception to the hearsay rule. However, because the argument wasn’t raised before the Court of Appeals it couldn’t be raised before the Supreme Court.

Scamardo was accused of fondling a minor female at his parents’ home over Labor Day weekend in 2008. Scamardo’s mother testified her son wasn’t at her residence at the time of the alleged offense.